UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LISA J. WILSON,

Appellant,

v. 

DEPARTMENT OF JUSTICE,

Agency. 

DOCKET NUMBER

CH-3443-15-0480-I-1

DATE: September 16, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Lisa J. Wilson, McKees Rocks, Pennsylvania, pro se. 

Jennifer Spangler, Esquire, Kansas City, Kansas, for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such 

as this one only when: the initial decision contains erroneous findings of material 

fact; the initial decision is based on an erroneous interpretation of statute or 

regulation or the erroneous application of the law to the facts of the case; the 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 
2

administrative judge’s rulings during either the course of the appeal or the initial 

decision were not consistent with required procedures or involved an abuse of 

discretion, and the resulting error affected the outcome of the case; or new and 

material evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. See title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review. We AFFIRM the initial decision

insofar as it found that the appellant failed to establish jurisdiction under 5 C.F.R. 

part 300 regarding employment practices. We MODIFY the initial decision to 

explain why the appellant failed to establish jurisdiction under the suitability 

regulations, 5 C.F.R. part 731. 

BACKGROUND

¶2 The appellant challenged the agency’s Bureau of Prison’s decision to 

eliminate her from consideration for a Correctional Officer position for which she 

had applied. The appellant alleged that, during an interview for the position, the 

Human Resources (HR) Specialist conducting the interview asked her about past 

terminations or discipline, and she replied in the negative. Initial Appeal File 

(IAF), Tab 1 (item 5 continuation sheet). According to the appellant, the HR 

Specialist pointed to an answer on an employment form in which the appellant 

had said she had been “separated” from a job “due to lack of productivity, did not 

meet quota in month of employment.” Id.; IAF, Tab 6 at 19. The appellant 

alleged that the HR Specialist subsequently terminated the interview, telling her, 

“you won’t be able to get a security clearance based on the recent termination, 

this applies to everybody and we must treat everyone the same.” IAF, Tab 1 

(item 5 continuation sheet). The appellant stated that she had not understood her 
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separation to have been a termination, and that she had separated from the 

employer with “dignity and integrity.” IAF, Tab 2 at 8, Tab 9 at 5-6. 

¶3 Using the Board’s electronic appeal form, the appellant stated that she was 

appealing a “Negative suitability determination.” IAF, Tab 1 (item 1). In her 

acknowledgment order, the administrative judge notified the appellant that 

nonselections generally are not appealable to the Board, but informed her of three 

exceptions to that general rule, none of which related to suitability. IAF, Tab 3

at 3. The agency then filed a motion to dismiss, arguing that the appellant failed 

to make a case under the suitability regulations of 5 C.F.R. part 731. IAF, Tab 7. 

The administrative judge then issued an order to show cause directing the 

appellant to submit evidence and argument to show Board jurisdiction, in which 

she explained the elements for establishing jurisdiction under 5 C.F.R. part 300, 

subpart A, regarding employment practices. IAF, Tab 8. The order to show 

cause did not mention the requirements for establishing jurisdiction over a 

suitability appeal under 5 C.F.R. part 731. The appellant subsequently submitted 

numerous pleadings. IAF, Tabs 9-11, 13-18. Although the appellant, in some of 

her pleadings, argued for jurisdiction over her appeal as an employment practices 

appeal, all of the pleadings argued for jurisdiction as a suitability appeal. Id. In 

both its motion to dismiss and in its reply to the appellant’s response to the order 

to show cause, the agency argued that the appellant failed to establish jurisdiction 

over her appeal under the suitability regulations because those regulations only 

apply when the agency has conducted a background investigation, and no such 

investigation had been conducted. IAF, Tab 7, Tab 12 at 5. 

¶4 Much of the initial decision was primarily devoted to explaining why the 

appellant failed to establish jurisdiction over her nonselection as an employment 

practices appeal. IAF, Tab 21 at 3-5. The decision did, however, briefly address 

the appellant’s suitability claim as follows: 

The appellant checked the box on her appeal form that she was 

appealing a negative suitability action, however, the appellant 
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has not provided any evidence that a suitability action was taken 

pursuant to 5 C.F.R. §§ 731.103(a), .205 (2015). Conclusory, vague, 

or unsupported allegations are insufficient to meet the non-frivolous 

allegation standard. See Briscoe v. Department of Veterans Affairs, 

55 F.3d 1571, 1573 (Fed. Cir. 1995). 

IAF, Tab 21, Initial Decision (ID) at 3. 

¶5 An appellant must receive explicit information on what is required to 

establish an appealable jurisdictional issue before an appeal can be dismissed for 

lack of jurisdiction. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 

643-44 (Fed. Cir. 1985). Although the initial decision briefly addressed the 

appellant’s contention that her case should be heard as a suitability appeal under 

5 C.F.R. part 731, the administrative judge previously had not acknowledged the 

appellant’s claim of jurisdiction as a suitability appeal. Nor did the 

administrative judge explain, in the initial decision or previously, what is 

required to establish an appealable issue in a suitability appeal. The Board 

therefore issued an order on July 6, 2016, which described the requirements for 

establishing jurisdiction over a suitability appeal and ordered the appellant to 

submit evidence and argument relating to her jurisdictional burden. Petition for 

Review (PFR) File, Tab 5. The parties responded to that order. PFR File,

Tabs 6-7. 

ANALYSIS

¶6 Suitability is directed toward whether the character or conduct of an 

individual is such that her employment would adversely affect the integrity or the 

efficiency of the service. 5 C.F.R. § 731.101(a). The criteria for making 

suitability determinations are listed in 5 C.F.R. § 731.202. One factor in 

determining if a person is suitable for Federal employment is whether she has 

made a “[m]aterial, intentional false statement, or deception or fraud in 

examination or appointment.” 5 C.F.R. § 731.202(b)(3). What is required to 

establish jurisdiction over a suitability appeal changed effective June 16, 2008, 

when the Office of Personnel Management (OPM) amended its regulations in 
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part 731. 73 Fed. Reg. 20,149 (2008). In decisions governed by the regulations 

in effect prior to that date, the Board found that appellants had made nonfrivolous 

allegations of jurisdiction where denials of applications may have been based on 

suitability factors, even in the absence of completed background investigations 

and/or formal suitability determinations. See, e.g., Upshaw v. Consumer Product 

Safety Commission, 111 M.S.P.R. 236, ¶ 7 (2009), modified by Scott v. Office of 

Personnel Management, 116 M.S.P.R. 356 (2011), modified, 117 M.S.P.R. 467

(2012); Edwards v. Department of Justice, 86 M.S.P.R. 365, ¶¶ 5, 10-14 (2000); 

Dillingham v. Department of Justice, 73 M.S.P.R. 538, 541-43 (1997). Under the 

current regulations, however, only a “suitability action” taken by OPM or by an 

agency under delegated authority may be appealed to the Board. 5 C.F.R. 

§ 731.501(a). A “suitability action” is defined as a cancellation of eligibility, a 

removal, a cancellation of reinstatement eligibility, and a debarment. 5 C.F.R 

§ 731.203(a). Neither a “denial of appointment” nor a negative suitability 

determination is listed as an appealable action, and section 731.103(g) no longer 

provides that an applicant who is found unsuitable by an agency acting under 

delegated authority from OPM may appeal an adverse suitability decision to the 

Board. Upshaw, 111 M.S.P.R. 236, ¶¶ 7-8. The current regulations specify that a 

“non-selection, or cancellation of eligibility for a specific position . . . is not a 

suitability action even if it is based on reasons set forth in § 731.202.” 5 C.F.R. 

§ 731.203(b) (emphasis in original); see Upshaw, 111 M.S.P.R. 236, ¶ 8. 

¶7 Thus, even if, as the appellant alleges, the agency eliminated her from 

consideration for a position for reasons set forth in section 731.202, and even if 

those reasons could be said to reflect negatively on her character or conduct such 

that her employment would adversely affect the integrity or the efficiency of the 

service, the agency did not thereby take a suitability action that is appealable to 

the Board. 
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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request review of this final decision by the U.S. Court of Appeals for the Federal 

Circuit. You must submit your request to the court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. 

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court 

has held that normally it does not have the authority to waive this statutory 

deadline and that filings that do not comply with the deadline must be dismissed. 

See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the

United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court’s website, 

www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se 

Petitioners and Appellants,” which is contained within the court’s Rules of 

Practice, and Forms 5, 6, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The
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Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board